*518

*519

purposes of taxation in Cheyenne by the city authorities, or only by the territorial board of equalization, consisting of the governor, treasurer, and auditor of the territory; and this question depends on the further question whether such assessment and valuation are governed by the city charter of the city, or by the act entitled "An act in relation to the assessment of railways and telegraph lines," passed December 13, 1879. The city charter, which was last revised on the subject of taxation by an amendment passed on the twentysixth of November, 1879, (only 17 days prior to the railroad assessment act,) gives to the city power "to levy and collect taxes for general revenue purposes, not exceeding six mills on the dollar in any one year on all real, personal, and mixed property within the limits of said city, taxable under the laws of the territory;" and it is provided that "the assessment, levy, and collection of all taxes shall be made as may be provided by ordinance." Authority is also given to the city to raise a further tax to pay interest on its bonds, and a tax for improvement of streets and alleys. The railroad assessment act, passed on the thirteenth of December, 1879, is a very carefully prepared statute, providing for a mode of assessing the value of railroad property, and distributing it among the counties and districts through which the railroad may run. Although general in its terms, it must have had particularly in view the Union Pacific Railroad, to which alone it would principally apply. This act is so important a factor in the decision of this case that we quote the first section entire. The title has already been quoted. The first section is as follows:

"Section 1. The president, secretary, superintendent, or other principal accounting officers of any railroad or telegraph company having property in this territory, at the time of the assessment of every railroad and telegraph company, whether incorporated by any law of this territory or not, when any portion of the property of said railroad or telegraph company is situated in more than one county, shall list for assessment and taxation, verified by the oath or affirmation of the person so listing, all the following described property belonging to such corporation within the territory, viz.: Road-bed, superstructure, right of way, and all structures situated thereon, rolling stock, side track, telegraph lines, furniture, and fixtures, and personal property belonging to such corporation. Such list shall contain-First, the number of miles of such railroad or telegraph line in the territory of Wyoming, and the number of miles of the same in each organized county therein; second, and such return shall be made to the auditor of the territory on or before the first day of July, annually. If the return aforesaid be not received by said auditor by the third day of July, he shall thereupon proceed to obtain the facts and information aforesaid in any manner that may appear most likely to secure the same correctly, and for that purpose may address a written communication to the corporation, or to some officer of the corporation who has failed or refused to make the return aforesaid. As soon as practicable after the auditor has received said return, or procured the information required to be set forth in said return, a meeting of the territorial board of equalization, consisting of the governor, territorial treasurer, and auditor, shall be held at the office of said auditor, and the said board shall then value and assess the property of said corporation for each mile of said road or line, the value of each mile to be determined by dividing the sum of the whole valuation by the number of miles of said road or line. In making up such valuation or assessment the said board shall examine and consider the return herein required to be made, or the information procured by the auditor in default of such return, together with such other reliable information relative thereto as they may be able to procure. Said board shall not assess the value of any machineshop, or repair-shop, or other buildings not situated on said right of way or grounds or other real estate of any corporation or company within this territory; but it shall be the duty of the assessor of the county or district in which

B

said machine or repair shops, or other buildings, or grounds, or other real estate is situated, to assess the same and make return thereof in the manner now provided for the assessment and return of real estate. On or before the first Monday of August, or so soon thereafter as the said board, or any two thereof, shall have made and determined said valuation and assessment, the territorial auditor shall certify to the county clerks of the several counties in which property of the aforesaid corporation, or any part thereof, may be situated, the assessment per mile so made on the property of such corporation, specifying the number of miles and amount in each of such counties. The county commissioners shall thereupon divide and adjust the number of miles and the amounts falling within each precinct, township, or school-district in their respective counties, and cause such amounts to be entered and placed on the lists of taxable property returned by the several assessors. The auditor shall certify whether a return was made to him by such corporation, or proper officer thereof, or whether the information required in and by such returns was procured by himself; and in case the return was not made as required by this act, or, being made, was not sworn to, it shall be the duty of the county commissioners to add any amount not exceeding 10 per cent. to the valuation thus brought before them."

The fifth section of the act declares as follows:

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"All acts and parts of acts providing for the assessment of the property of railroad and telegraph companies, and the equalization of assessments, inconsistent with the provisions of this act, are hereby repealed, so far as they provide for the assessment and equalization of the property of said railroad and telegraph companies."

It requires only a casual reading of this act to discover its purpose and object. The difficulty of assessing the value of railroad property in separate parcels, located in distinct cities and townships, is almost insuperable. A railroad cannot be regarded as mere land, like farm land or building lots; its value depends upon the whole line as a unit, to be used as a thoroughfare and means of transportation. A separate mile or two of its length is almost valueless by itself. And then its rolling stock has no particular locality except a constructive one in the place where the principal office of the railroad company is situated; and it would be manifestly unequal to give to that place the benefit of taxing the whole of it. The plan adopted by the statute avoids these difficulties. It places the power of assessing the value of the whole line, (so far as it lies within the territory,) including the rolling stock, in the hands of the board of equalization; and after they have fixed such valuation, and ascertained what it amounts to per mile for the whole length within the territory, such valuation per mile is certified by the territorial auditor to the clerks of the several counties through which the road passes, specifying the number of miles in each county, so as to give to each its pro rata share, and then the county commissioners divide and adjust the number of miles, and the amounts, falling within each taxing precinct, township, and school-district, to be entered on their respective lists of taxable property. It seems hardly to admit of a doubt that the object of this scheme was to withdraw the difficult task of assessing fractional parts of a railroad and its property from the hands of local assessors, who could hardly be expected to proceed upon any uniform plan, and each of whom would naturally favor his own particular district.

This being the evident purpose and object of the act, it is difficult to see why it should not apply to the city of Cheyenne as well as to every other portion of the territory. But the counsel for the city raise several grounds of objection to this view which it is necessary for us to consider. They contend that the language of the city charter is very broad, authorizing the corpora tion to assess every kind of taxable property situated within the city bounds, and that this includes railroad property; and they insist that this law must

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stand until it can be shown to be repealed; that the railroad assessment law does not repeal it in express terms, and cannot be construed to repeal it by implication, because the city charter is a special law, intended for a particular locality, and will not be repealed by implication by any general law containing contrary provisions, unless the latter be expressed in such universal terms as necessarily to include every particular case; that such universal terms are not used in the law, but, on the contrary, while other subordinate territorial divisions are included by name, corporate cities and municipalities are not mentioned nor alluded to. This is a summary of the defendants' argument. It is certainly plausible and entitled to careful consideration.

First. As to the relative character of the two statutes: is it true that the one is a special statute and the other a general one, in the sense contended for? The city charter is special as it relates to a single district or municipality, but the railroad assessment act is quite as special, as relating to a single subject of taxation. The one gives general powers of assessment and taxation to the city, but the other directs that railroad property shall be assessed and valued by the board of equalization in a particular way. Is not the last law even more special in character than the first? Suppose a law had been passed declaring that every horse in the territory should be assessed for the purpose of taxation at the value of $200. Would not such a particular direction be binding on the city of Cheyenne as well as on the country districts? Do not the object and reason of the railroad assessment law apply to a city like Cheyenne as well as to counties and townships? Ought not the policy of the state with regard to special objects of taxation to be extended to every portion of the state, unless some defect in the laws themselves prevent its being done?

Second. Is it true that the language of the railroad assessment act does not include cities in the fair construction of its terms? Does it not fairly include every territorial district or division of Wyoming-cities as well as counties and townships? Note the following passage: "Said board shall not assess the value of any machine-shop or repair-shop, or other buildings not situated on said right of way or grounds, or other real estate of any corporations or company within this territory; but it shall be the duty of the assessor of the county or district in which said machine or repair shops, or other buildings, or grounds, or other real estate is situated, to assess the same, and make return thereof in the manner now provided for the assessment and return of real estate." In using the words "county or district," in this clause, is not the latter word "district" used in its largest sense, to signify any subordinate territorial division whatever less than a county? It seems to us that the language used is intended to cover every case. In connection with this, read again the direction given to the county commissioners, after the state auditor has certified to them the assessment per mile made by the board of equalization. It is as follows: "The county commissioners shall thereupon divide and adjust the number of miles and the amounts falling within each precinct, township, or school-district in their respective counties, and cause such amounts to be entered and placed on the lists of taxable property returned by the several assessors." Does not this enumeration of subordinate tax-districts (for clearly tax-districts are meant) embrace every kind of tax-district within the county? "Precinct" is a general word and not a technical one in Wyoming, and indicates any district marked out and defined. In the connection in which it stands it signifies a district inferior to a county, for it is used to denote a portion of a county; and superior to a township, for the enumeration evidently proceeds from the greater to the less,-"precinct, township, school-district." What tax-districts are there in Wyoming inferior to a county and superior to a township, if incorporated cities and towns are not such?

As before suggested, the railroad assessment law, considering its purpose and object, ought to be extended to every tax-district in the state. if its lan

guage admits of such a construction. We think that it not only admits, but fairly requires, such a construction. * If, in addition to this, we take into con-* sideration the fifth section of the act, which expressly repeals "all acts and parts of acts providing for the assessment of the property of railroad and telegraph companies, and the equalization of assessments, inconsistent with the provisions of this act, * * so far as they provide for the assessment and equalization of the property of said railroad and telegraph companies," we cannot doubt that the act was intended to reach every case of taxation of railroads in the territory when situated in more than one county. Surely the charter of the city of Cheyenne is embraced in this description of acts or parts of acts to be repealed; for, according to the appellees' own contention, that charter does provide for the assessment of the property of railroad and telegraph companies; and there can be no doubt that the mode of making such assessment under said charter is entirely inconsistent with that prescribed by the act in question. We are of opinion, therefore, that the assessment complained of was illegal and unauthorized.

But it is contended that the complainant should have sought a remedy at law, and not in equity. It cannot be denied that bills in equity to restrain the collection of taxes illegally imposed have frequently been sustained. But it is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens, however, that the case is such that the person illegally taxed would suffer irremediable damage, or be subject to vexatious litigation, if he were compelled to resort to his legal remedy alone. For example, if the legal remedy consisted only of an action to recover back the money after it has been collected by distress and sale of the tax-payer's lands, the loss of his freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which such a sale could be made, would be a grievance which would entitle him to go into a court of equity for relief. Judge COOLEY fairly sums up the law on this subject as follows: "To entitle a party to relief in equity against an illegal tax, he must by his bill bring his case under some acknowledged head of equity jurisdiction. The illegality of the tax alone, or the threat to sell property for its satisfaction, cannot, of themselves, furnish any ground for equitable interposition. In ordinary cases a party must find his remedy in the courts of law, and it is not to be supposed he will fail to find one adequate to his proper relief. Cases of fraud, accident, or mistake, cases of cloud upon the title to one's property, and cases where one is threatened with irremediable mischief, may demand other remedies than those the common law can give, and these, in proper cases, may be afforded in courts of equity." This statement is in general accordance with the decisions of this court as well as of many state courts. Dows v. Chicago, 11 Wall. 109; Hannewinkle v. Georgetown, 15 Wall. 549; State Railroad Tax Cases, 92 U.S. 575, 612, 613, and cases there cited. In Cummings v. National Bank, 101 U. S. 153, 156, where the bank filed a bill to prevent the collection of a tax wrongfully assessed by the state against the shares of its stockholders, and which the bank was required to pay, we held that the fiduciary character in which the bank stood to its stockholders entitled it to come into a court of equity for relief. In the same case, the fact that a like remedy by injunction was given to parties in the state court was regarded as entitled to much weight; and it was further held that where a rule or system of valuation was adopted by the state board of assessment, calculated to operate unequally, and to violate the constitution of the state, and applicable to a large class of individuals or corporations, equity might properly interfere to restrain the operation of such unconstitutional exercise of power. And in Litchfield v. Webster Co. 101 U. S. 773, 779, we held that a court of equity might relieve against an excessive rate of interest on taxes in arrear, which was really in the nature

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of a penalty, and which the state could not fairly and equitably demand, having itself claimed title to the property taxed.

These authorities are sufficient to illustrate the rules by which courts of equity should be governed in assuming jurisdiction of suits brought to arrest the collection of illegal taxes. We think that the allegations of the bill in this case bring it fairly within the jurisdiction of the court. It shows that it would involve the plaintiff in a multiplicity of suits as to title of lots laid out and being sold; would prevent their sale; and would cloud the title to all its real estate. We think that these results are sufficiently apparent, and render it unnecessary to look further. The allegation of fraud has not been proven, and cannot, therefore, have any effect in the case. It is unnecessary to inquire into the sufficiency of other grounds for equitable relief which are alleged in the bill.

Another point raised by the defendants, not affecting the jurisdiction of the court but the propriety of its taking jurisdiction, is that the complainant ought to have paid the taxes which are conceded to be due to the city for the year 1880. As we understand the facts stated by the bill, (which, of course, the demurrer admits to be true,) the complainant did pay to the city all the taxes which would be due upon the assessment and valuation made by the board of equalization, including taxes due on outside property of the company in the city.

The decree of the supreme court of Wyoming must be reversed, and the cause remanded, with instructions to enter a decree in favor of the complainant in conformity with this opinion; and it is so ordered.

(113 U. S. 618)

WINONA & ST. P. R. Co. v. BARNEY and others.1

(March 2, 1885.)

1. LAND GRANTS-RAILROADS-ACT OF CONGRESS, 1857-INDEMNITY CLAUSE.

In the act of congress of March 3, 1857, granting lands to the territory of Minnesota for railroad purposes, the indemnity clause covers losses from the grant by reason of sales and the attachment of pre-emption rights between that date and the final determination of the route of the road.

2. SAME-ACT OF 1865-RESERVATION OF LAND PREVIOUSLY GRANTED.

In the act of 1865, the reservation of the lands previously granted to Minnesota from the additional four sections, that is, from the extension of the original grant of 1857, was only a legislative declaration of that which the law would have pronounced independently of it.

8. SAME PRIORITY OF HOLDERS UNDER Land Grants.

When the grant, previously made to Minnesota to aid in the construction of the Minnesota & Cedar Valley Railroad, interferes with the extension of the grant to the railroad company by the act of 1865, the extension must be abandoned. The earlier grant takes the land which would be otherwise added to the original six sections.

Appeal from the Circuit Court of the United States for the District of Minnesota.

*On the third of March, 1857, congress passed an act making a grant of lands to the territory of Minnesota to aid in the construction of certain railroads, with their branches, and, among others, a railroad from Winona, a town on the Mississippi river, via St. Peter, to a point on the Big Sioux river, south of the forty-fifth parallel of north latitude, which is in the present territory of Dakota. The language of the act is: "That there be, and is hereby, granted to the territory" "every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sec

1S. C. 6 Fed. Rep. 802.